Dennis Michael Blay, a prisoner at the Limon Correctional Facility (LCF)
in Limon, Colorado, worked in the LCF graphics design shop fabricating signs
from various materials. He alleges that the defendants, his supervisors at the
design shop, violated his Eighth Amendment right to be free from cruel and
unusual punishment by failing to provide the ventilation and tools necessary for
him to work safely. Seeking legal recourse, Mr. Blay sued defendants in federal
district court under 42 U.S.C. 1983. The district court, adopting the report and
recommendation of the magistrate judge assigned to the case, granted defendants
summary judgment. On appeal, Mr. Blay asks this court to reverse the district
court's ruling. He asserts that (1) the record shows genuine issues of fact
material to his 1983 claims, and (2) the district court erred in denying him a
six-month extension of time to file his response to defendants' summary
judgment motion.

Because we agree that the existence of genuine issues of material fact
preclude summary judgment, we REVERSE the district court's grant of summary
judgment and REMAND for further proceedings.

I.

This appeal has been before us previously. At that time, we vacated the
district court's judgment and remanded the case to the district court, directing it
to dismiss Mr. Blay's claims without prejudice because Mr. Blay had not
demonstrated the exhaustion of his administrative remedies required by 42 U.S.C.
1997e(a). See Blay v. Reilly, 152 F. App'x 747, 749 (10th Cir. 2005)
(unpublished), vacated, 127 S. Ct. 1213 (2007). Our decision was mandated by
this court's precedent at that time. See Steele v. Fed. Bureau of Prisons, 355
F.3d 1204, 1209-10 (10th Cir. 2003) (holding that 1997e(a) imposed upon the
prisoner a mandatory and unwaivable pleading requirement), abrogated by Jones
v. Bock, 127 S. Ct. 910 (2007) (holding that failure to exhaust administrative
remedies as required by 42 U.S.C. 1997e(a) is an affirmative defense, not a
pleading requirement). On November 23, 2005, the district court complied with
the mandate of this court and entered judgment dismissing Mr. Blay's claims
without prejudice.

On February 20, 2007, the Supreme Court granted certiorari in this case
and vacated our judgment, remanding the case to us for further consideration in
light of its ruling in Jones v. Bock. Accordingly, we have recalled our mandate
to the district court and now proceed to the merits of the appeal, exercising
jurisdiction under 28 U.S.C. § 1291.

II.

Under the Eighth Amendment, "prison officials must ensure that inmates
receive adequate food, clothing, shelter, and medical care, and must 'take
reasonable measures to guarantee the safety of the inmates.'" Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517,
526-27 (1984)). Under the pertinent part of 42 U.S.C. 1983, "[e]very person
who, under color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia, subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution . . . shall be liable to the party injured in
an action at law." Mr. Blay claims that defendants failed to take reasonable
measures to guarantee his safety­and therefore violated both the Eighth
Amendment and 1983­by failing to provide him the ventilation and tools
necessary to work safely, despite his many requests for the same.

Mr. Blay claims that his job required him to use various tools­including
industrial saws, a sander, and a sprayer­to cut wooden signs to the correct size
and shape and then use various chemicals­including paints, primers, and mineral
spirits­to apply whatever finishing coating was necessary. He claims that the
room in which he worked did not have adequate ventilation to properly disperse
the large amounts of hazardous fumes and dust produced during the fabrication
process, and that exposure to the fumes and dust caused him various injuries.

Mr. Blay also claims he was required to remove the vinyl coating from
metal sign "blanks." R., Doc. 102 at 11. He claims that removing the vinyl
required that he precariously balance the sign blanks on two saw horses and then
use considerable force in scraping them with a razor blade tool. He alleges that
this was an inherently and unavoidably dangerous arrangement because the razor
blade at times unexpectedly caught on, and then uncontrollably slipped free from,
the vinyl and eventually resulted in his finger being cut.

To prove his claims, Mr. Blay must show (1) that the inadequate
ventilation and tools each posed a substantial risk of serious harm to him, and (2)
that defendants' refusal to alleviate these risks constituted "deliberate
indifference" to them. Farmer, 511 U.S. at 834 (internal quotation marks
omitted). Said another way,

a prison official cannot be found liable under the Eighth Amendment
for denying an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.

Id. at 837.

Defendants moved for summary judgment on Mr. Blay's claims. In so
moving, they had "both the initial burden of production on [their motion] and the
burden of establishing that summary judgment is appropriate as a matter of law."
Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002).
To carry their initial burden of production, they had to either produce
"affirmative evidence negating an essential element of [Mr. Blay's] claim" or
show that Mr. Blay "[did] not have enough evidence to carry [his] burden of
persuasion at trial." Id. Defendants sought to show that they were not
deliberately indifferent to the alleged risks to Mr. Blay's safety.

To do this, defendants relied mainly on their own affidavits. Mr. Reilly
averred that the graphics design shop was only four years old and was designed
to be a sign shop, "which includes the implementation of an adequate ventilation
system." R., Doc. 77, Ex. A at 2. Mr. Reilly further averred that "the health
department conducts yearly inspection tours of the building" and that in response
to health inspector recommendations, the prison had added more vents, upgraded
one of the ventilation fans in "the washout room," and purchased a dozen
respirators for use in the shop. Id. Mr. Graham averred in his affidavit that he
was "aware that both the health department and the American Correctional
Association conduct inspections to insure that the shop meets all specifications
and industry standards." Id., Ex. C at 2. He also averred that "[t]he [g]raphics
design shop was well-ventilated with two (2) industrial fans and two (2)
wall-mounted fans for the benefit of all inmate employees and supervising
guards. In addition, particle/dust masks were available to Inmate Blay when he
worked in the Graphics Design Shop." Id. As to the injury Mr. Blay sustained
on his finger, Mr. Graham averred that the accident was addressed at a
subsequent safety meeting but that "there did not appear to be any further safety
measures that could have been implemented to avoid [that] type of accident." Id.,
Ex. C at 3.

Mr. Blay filed a verified response to defendants' motion for summary
judgment. SeeCelotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)
(holding that
if the moving party carries its initial burden on summary judgment, the
nonmoving party must go beyond the pleadings and designate specific facts
showing that there is a genuine issue for trial). As to his inadequate ventilation
claim, he averred that the room where he worked was not equipped with its own
ventilation system; that "the small ceiling ducts that supplied air to the Prep room
had virtually no effect[] on the high-concentrations of chemical fumes or
high-concentrations of . . . dust, and particulates," R., Doc. 102 at 16; and that
the room's industrial fan "did not draw fresh air into or exhaust air out of the
Prep Room," id. at 6. He further averred that the shop's general ventilation
system was not sufficient because he was ordered to keep the prep room door
closed to avoid contaminating the work product of prisoners in the "open area" of
the shop. Id. at 16. Mr. Blay averred that the respirators and masks available to
him did not properly conform to his face, clogged so easily as to make breathing
difficult, did not protect against chemical fumes, and could not be worn in
conjunction with safety glasses. Mr. Blay averred that the fumes and dust caused
him daily nausea; chronic headaches; blurred vision; coughing; sneezing; blood,
dust, and particulates in his nasal mucus; dust and particulates in his phlegm;
chest pains; and difficulty breathing. Id. at 2. He averred that he "complained
numerous times that the lack of ventilation and dust collection was making him
sick." Id. at 3.

As to his inadequate tool claim, Mr. Blay averred:

The Graphics Design Shop ("the Shop") provided only rudimentary
tools and equipment to work on sign blanks. Instead of a work table
Blay was provided with two wooden "saw horses" upon which he
had to place the metal sign blank. A chemical solvent was poured
onto the blank, spread out, and allowed to soak in to hasten removal
of the vinyl that was adhered to the blank. Next, he would apply
considerable dow[nwa]rd force with the left hand while
simultaneously pressing it against his body to keep it from moving.
Since [the] vinyl was extremely tough and stubbornly adhered to the
blank he had to use considerable force to scrape the vinyl off
bit-by-bit. The awkward position and considerable force he applied
caused many close calls, regardless of how much caution he
exercised, when removing the vinyl.

Id. at 11. Mr. Blay also averred that because of several close calls where he
barely avoided cutting himself he made numerous requests to defendants for a
work table upon which to clamp the blanks and a "stripper wheel"(1) to assist in
removing the vinyl, explaining why such tools were needed to do the job safely.
He also averred that defendants had enough experience working in the shop that
the danger should have been obvious to them, but that "[s]ometime after making
each request either Graham or Pelletier would relate to Blay that Reilly had not
approved the purchase." Id. at 11-12. Mr. Blay eventually cut his left index
finger with the razor blade, allegedly causing some permanent loss of sensation.

[w]hile [Mr. Blay] allegedly expressed his concerns to the
defendants about the shop's ventilation, the tools he was provided,
and the manner in which his specific job was set up, and he allegedly
even presented to the defendants his own detailed suggestions for
improvement, it cannot reasonably be found, based merely upon
[Mr. Blay's] layman's opinions, that the experienced defendants
were aware of an excessive risk to [Mr. Blay's] health and safety
and/or that they responded unreasonably to the risk.

R., Doc. 110 at 15. The district court adopted the magistrate judge's report and
recommendation and granted summary judgment and Mr. Blay appealed.

We review a summary judgment order de novo, considering the evidence
and all reasonable inferences drawn therefrom in the light most favorable to the
nonmoving party. Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000).
Rule 56(c) of the Federal Rules of Civil Procedure states that a party is entitled
to summary judgment in his or her favor "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." "The inquiry performed is the
threshold inquiry of determining whether there is the need for a trial­whether, in
other words, there are any genuine factual issues that properly can be resolved
only by a finder of fact because they may reasonably be resolved in favor of
either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Said
another way, "[w]here the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no 'genuine issue for trial.'"
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
In reviewing summary judgment, we keep in mind that "[a] pro se litigant's
pleadings are to be construed liberally and held to a less stringent standard than
formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).

We disagree with the district court's determination that a reasonable
fact-finder could not find "based merely upon [Mr. Blay's] layman's opinions,
that the experienced defendants were aware of an excessive risk to [Mr. Blay's]
health and safety and/or that they responded unreasonably to the risk." R., Doc.
110 at 15. Viewing the record in the light most favorable to Mr. Blay as we
must, it is clear that defendants did not respond to the risks complained of by Mr.
Blay. A reasonable fact-finder could also find that defendants were aware of an
excessive risk to Mr. Blay's health and safety.(2) In the light most favorable to
Mr. Blay, the defendants knew that despite the alleged adequacy of the
ventilation in the shop as a whole and the regular safety inspections, Mr. Blay's
specific job in the enclosed and poorly ventilated prep room was causing him
serious respiratory distress and other physical problems. They also knew that,
with the tools available to him, Mr. Blay had almost cut himself a number of
times because he could not avoid instances where the razor blade would catch
and then slip loose uncontrollably. Consequently, we cannot say that "the record
taken as a whole could not lead a rational trier of fact to find for" Mr. Blay on
his claims. Matsushita Elec. Indus. Co., 475 U.S. at 587.

Consequently, we must reverse the district court's grant of summary
judgment. Since we hold that Mr. Blay presented sufficient specific facts in his
verified response to defeat defendants' summary judgment motion, we need not
address his second point alleging that the district court erred in not granting him
a six-month extension of time in which to file that response.

III.

We VACATE the district court's November 23, 2005, judgment that was
entered in accordance with our now-withdrawn mandate. The district court's
original July 22, 2004, judgment is REVERSED and the case is REMANDED for
further proceedings. Mr. Blay's motion to supplement the record, previously
denied as moot, is again DENIED.(3)

FOOTNOTESClick footnote number to return to corresponding location in the text.

*. After examining the briefs and appellate
record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1. Mr. Blay described a "stripper
wheel" as a wheel attached to an electric
drill "allow[ing] the user to remove rust, paint, etc., from a variety of surfaces
efficiently and effortlessly." R., Doc. 102 at 14.

2. We do note that Mr. Pelletier and
Mr. Graham both averred that Mr. Blay
never complained to them about inadequate ventilation or tools while employed
at the shop. Although­being careful to assiduously avoid any stark departure
from the summary judgment standard mandated by the Federal Rules of Civil
Procedure, cf. Erickson v. Pardus, 127 S. Ct. 2197, 2198 (2007)­we must take
as
true Mr. Blay's claim that he did in fact complain to defendants about the alleged
risks to his health, we intend no comment on the merit of any possible future
summary judgment motion based on a failure to exhaust administrative remedies
or any other not previously pursued affirmative defense.

3. Our previous grant of Mr. Blay's
motion to proceed on appeal without
prepayment of fees remains in effect as a matter of course.